I. SUMMARY

1. This
report concerns the admissibility of Petition No. 1070-04 which was
opened by the Inter-American Commission on Human Rights (hereinafter
“Inter-American Commission”, “Commission” or “IACHR”) following receipt
of a petition on October 14, 2004, lodged by Leonardo Aníbal Javier
Fornerón and Margarita Rosa Nicoliche, legal representative of CESPPEDH
(Centro de Estudios Sociales y Políticos para el Desarrollo Humano),
juridically represented by Susana Ana María Terenzi and Alberto
Pedronccini, president of APDH, the Permanent Assembly for Human
Rights, (hereinafter “the petitioners”), against the Republic of
Argentina (hereinafter “Argentina”, or “the State”). The petitioners
allege that the State is responsible under the terms of the American
Convention on Human Rights (hereinafter “American Convention” or “the
Convention”) because Leonardo Aníbal Javier Fornerón was prevented from
caring for and bringing up his daughter, Milagros Fornerón, thus
prejudicing his rights as a father and the best interests of the child.

2. The
petitioners claim that on June 16, 2000, the child Milagros, daughter of
Diana Elizabeth Enríquez, was born in the city of Victoria in the
province of Entre Ríos and that the following day in the presence of the
Ombudsman for Children and the Poor, [Defensor de Pobres y Menores]
she was delivered into the provisional guardianship of a couple with a
view to adoption.

3. It is
claimed in the petition that Mr. Leonardo Aníbal Javier Fornerón learned
that Milagros was his daughter on July 4, 2000, and formally recognized
her on July 18, 2000 at the Registry for Marital Status and Personal
Legal Capacity in the city of Victoria. It is stated that on October 18,
2000, Mr. Fornerón applied to the civil and commercial judge of first
instance in the city of Victoria for the suspension of the provisional
guardianship order and for the return of his daughter. However, on May
17, 2001, the judge decided to award guardianship of Milagros to the
couple to whom she had been delivered by her biological mother. It is
also alleged that on November 15, 2001, Mr. Fornerón brought proceedings
for visiting rights in which no resolution had yet been reached by the
time the petition was lodged, which the petitioners allege has prevented
him from getting to know his daughter. The petition alleges that the
proceedings for both legal guardianship and visiting rights were marked
by unwarranted delays on the part of the jurisdictional authorities and
that this has led to Mr. Fornerón being excluded from Milagros’ life.

4. The
State, for its part, claims that Leonardo Aníbal Javier Fornerón had
full access to all effective legal remedies, in the civil as well as in
the criminal courts and although he has never relinquished his claims
before the relevant judicial authorities for the return of his daughter
Milagros, there have been inactive periods in the management of his case
where the delays have not been attributable to the local legal
authorities. The State maintains that Leonardo Aníbal Javier Fornerón
failed to exhaust the additional mechanism of an extraordinary appeal at
federal level, in the criminal process, and also a direct appeal to the
Supreme Court of Justice, as part of the case concerning legal
guardianship. The State therefore believes the case should be declared
inadmissible.

5. As
stipulated in Articles 46 and 47 of the American Convention, as well as
in Articles 30 and 37 of its Rules of Procedure, and having examined the
positions of the parties, the Commission decided to declare the petition
admissible. Therefore, the IACHR decides to notify its decision to the
parties and to continue its examination of the merits of the case in
relation to the alleged violations of Articles 17 (the Rights of the
Family), 19 (the Rights of the Child), and 24 (the Right to Equal
Protection), as well as 8 (the Right to a Fair Trial), and 25 (the Right
to Judicial Protection), in relation to Article 1.1 (Obligation of the
State to Respect Rights) of the American Convention. The Commission also
decided to notify the parties of this decision, to publish it, and to
include it in its Annual Report to the General Assembly of the
Organization of American States.

II. PROCESSING BY THE COMMISSION

6. The
petition was lodged by the petitioners with the Executive Secretariat of
the Commission on October 14, 2004. The Commission began to process the
petition on January 21, 2005, when it transmitted to the State the
relevant parts of the petition and requested it to respond within a
period of two months.

7. On
February 28, 2005, additional information was received from the
petitioners and on March 22, 2005, they lodged a request for
precautionary measures in favor of Milagros Fornerón alleging that the
couple who had guardianship of Milagros had begun proceedings for full
adoption that could bring about a definitive change in the legal status
of the minor because if the adoption was granted all links with her
biological family would be broken. In accordance with the decision by
the Commission, on March 31, 2005, information was requested from the
State in order to evaluate the situation. The State responded in due
course by means of a communication received on April 11, 2005.

8. On May
31, 2005, additional information was received from the petitioners,
which was transmitted to the State on June 13, 2005, and the State was
asked to present its observations within one month. The State responded
by means of a communication received on July 27, 2005 and this was
transmitted to the petitioners on November 21, 2005.

9. The
petitioners filed additional communications on December 28, 2005 and
April 12, 2006, which were both transmitted to the State on August 21,
2006.

III. POSITIONS OF THE PARTIES

A. Petitioners

10. The
petitioners state that on July 3, 2000, Leonardo Aníbal Javier Fornerón
learned that Diana Elizabeth Enríquez, with whom he had had a personal
relationship lasting approximately 12 months, had on June 16, 2000,
given birth to a girl, Milagros who would also be his daughter; and for
this reason on July 4, 2000, he appeared before the Victoria Ombudsman
for Children and the Poor where he registered his intention to recognize
the child. The petitioners explain that Mr. Fornerón lives in the city
of Rosario de Tala which is approximately 100 kilometers from the city
of Victoria. On July 18, 2000, Leonardo Aníbal Javier Fornerón formally
recognized Milagros before the Registrar for Marital Status and Personal
Legal Capacity in the city of Victoria, province of Entre Ríos.

11. The
petitioners state that on June 17, 2000, one day after she was born,
Milagros was placed by her mother with a couple, with a view to her
adoption. They state that when he heard this, Leonardo Aníbal Javier
Fornerón denounced the possible committing of the crime of suppression
of civil status, and on July 11, 2000 brought the case called
“Investigating Officer requests prior measures. Possible crime of
suppression of legal status.” The petitioners state that certain pieces
of evidence suggested to the investigating officer that “it was possible
to allege that a baby buying or selling scenario existed on the basis of
the following details: a single girl, pregnant, had received a financial
offer to hand over her daughter at birth; a couple was found who were on
the register of those wishing to adopt and who were willing to pay to
have a child; the young girl was taken to another city (Victoria) where
she met the couple; she entered a private clinic, at no cost to herself,
in which the couple also stayed; when the child was born the situation
was whitewashed by placing her into foster care in the presence of an
officer from the office of the Ombudsman for Children and the Poor.

12. The
petitioners state that on August 4, 2000, the judged decided to close
the file relating to the legal proceedings because he was of the opinion
that “leaving aside any legal and ethical assessment of the behavior of
Diana Elizabeth Enríquez and of those who helped her and/or incited her
to act in such a way, she is not punishable under the terms of Article
138 of the Penal Code.[2]”

13. They
state that the prosecutor appealed against this decision on August 10,
2000 and on September 12, 2000, the Criminal Court of Gualaguey, in the
province of Entre Ríos, resolved to revoke the contested court decision
and instructed the acting judge to continue investigating the case.
However, they allege that although the investigating officer presented
sufficient evidence to substantiate a possible claim of child
trafficking, the case judge on January 31, 2001 shelved the proceedings
because the act is not subject to criminal proceedings based on the
argument that trafficking babies is not defined in the criminal code and
can only be sanctioned when it involves an attack on a person’s identity
or marital status, and provided that a parent/child filiation is
altered.

14.
Furthermore, the petitioners allege that based on his desire and need to
both know and bring up his daughter, in the proceedings entitled
“Enríquez Milagros s/ Legal Guardianship,” Mr. Fornerón, on October 18,
2000, asked for the provisional guardianship to be halted and to have
his daughter returned to him. As part of these proceedings, given that
the biological mother denied that Leonardo Aníbal Javier Fornerón was
the father of Milagros, on November 14, 2000 Mr. Fornerón underwent a
DNA test, the result of which was received on December 11, 2000 and
indicated a 99.9992% probability that he was the father of Milagros. The
petitioners allege that notwithstanding this, and disregarding the fact
that the child should be with her biological family, who claimed her, on
May 17, 2001, the judge of first instance in the Civil and Commercial
Court of Victoria, resolved to grant guardianship to the couple in whose
care she already was.

15. The
petitioners stress that the finding of the court of first instance on
May 17, 2001, denies the rights of Leonardo Aníbal Javier Fornerón as
biological father, because it concludes that no formal partnership had
existed between him and Diana Elizabeth Enríquez and that the fruit of
that relationship, Milagros, was not the result of love or of a desire
to set up a family, and that as Mr. Fornerón did not know the child and
was not married, Milagros would lack the presence in her life of a
mother. The petitioners are of the opinion that this argument is
discriminatory and does not respect the greater interest of the child,
which would be to know and grow up in the bosom of her biological
family.

16. The
petitioners state that on May 18, 2001, Mr. Fornerón appealed the
finding of the court of first instance, which was revoked on June 10,
2003 by the First Court of the Second Chamber of Appeals of Paraná,
capital of the province of Entre Ríos, because it was of the opinion
that it was necessary to essentially respect the dignity of the person
of Milagros, her freedom to be with her family of birth and her
biological identity, and resolved therefore to annul the guardianship
decided by the judge of first instance in the Civil and Commercial Court
of Victoria. However, both the guardians and the Ombudsman for the
Rights of Children and the Poor, on June 27 and 30, 2003 respectively,
lodged appeals against the findings which were both accepted, and the
resolution of first instance was reinstated. On April 2, 2004, the Civil
Court of the High Court of Justice of the Province of Entre Ríos decided
to turn down the extraordinary federal appeal lodged by Mr. Fornerón.

17. The
petitioners allege that the delay that existed in the proceedings for
legal guardianship was a determining factor to the detriment of Leonardo
Aníbal Javier Fornerón, and his paternal rights, because he lost the
first years of Milagros’ life and this led to her building up emotional
ties with the guardians instead of building them up with her biological
family.

18. The
petitioners state that although the finding of the court of first
instance allowed for the possibility of visiting rights for Leonardo
Aníbal Javier Fornerón, he brought proceedings to establish visiting
rights on November 15, 2001, under which it took until February 14,
2003, for a hearing to take place between the parties, Mr. Fornerón and
the guardians, supposedly to enable him and Milagros to begin a process
of getting to know each other, but only one meeting took place without
the child being present, and the second was cancelled by telephone.
Because of that, on November 25, 2003, Mr. Fornerón made a further
request for the visiting rights to be implemented. They allege that from
the beginning, proceedings were delayed, for reasons not attributable to
Leonardo Aníbal Javier Fornerón, due to jurisdictional competence
issues. They state that finally, on April 8, 2005, a new meeting was
arranged for April 29, 2005, when the guardians were to appear with
Milagros. Once again, the couple omitted to bring the child. The
petitioners allege that the refusal by the judge to issue a resolution
concerning visiting rights unjustifiably prevented Mr. Fornerón from
getting to know his daughter Milagros and so infringed his right to a
family. The petitioners consider that an unjustifiable delay occurred in
the proceedings and that the judge bore a responsibility for not
sanctioning the guardians in any way when they ceased to attend the
meetings that were indicated in order to allow Leonardo Aníbal Javier
Fornerón and his daughter to get to know each other.

19. In a
communication received on December 28, 2005, the petitioners stated that
on October 21, 2005 the first meeting took place between Leonardo Aníbal
Javier Fornerón and his daughter Milagros, in the presence of a
psychologist appointed by the judge. The meeting lasted 45 minutes. They
add that on November 18, 2005, Mr. Fornerón applied once more to the
court to request a decision on visiting rights. They state that the
judge had recently instructed that the guardians be informed of the
request, all of which they considered caused further delays in
implementing the resolution and hindered the periodic meetings between
Milagros and her biological father. They allege that the delays
experienced in the proceedings dealing with visiting rights have
infringed Leonardo Aníbal Javier Fornerón’s paternal rights and
Milagros’ rights as a daughter, because they have been deprived of the
right of living together, and the child is now six years old.

20.
Furthermore, the petitioners claim that Leonardo Aníbal Javier Fornerón
learned on March 10, 2005, of the existence of the proceedings for full
adoption brought by the guardians of Milagros when he was served with a
summons to appear before the case judge on April 9, 2005. They state
that Mr. Fornerón appeared and stated his opposition to the granting of
the adoption. By a communication received on April 12, 2006, the
petitioners reported that a judgment had been handed down in those
proceedings in February 2006 by which simple adoption of Milagros was
awarded to the custodian couple, and her surname was ordered to be
changed to that of the guardians.

B. State

21. In its
communications, the State explains that there are four legal files
relating to the situation of the minor Milagros.

22. Regarding
the case entitled “Investigating Officer requests prior measures.
Possible crime of suppression of legal status”, the State claims that on
January 31, 2001, the instructing judge was of the opinion that there
had been nothing criminal in the behavior of Diana Elizabeth Enríquez in
that she had traveled to the city of Victoria, registered at a private
health establishment, given birth, and registered the child as her own,
delivered her into the pre-adoptive foster care of a married couple and
stated her intentions before a legal officer. The State adds that the
instructing judge also disregarded the claim that either Leonardo Aníbal
Javier Fornerón or the child Milagros had been the victims of any
criminal act.

23. The State
alleges however that even though on February 5, 2001, the investigating
officer presented an appeal and the criminal court of the city of
Gualeguay resolved to reject it, there is no evidence of proceedings or
attempts to dispute the judicial decision by filing an extraordinary
federal appeal, nor that Leonardo Aníbal Javier Fornerón took the
proceedings of the case any further than the mere accusation.

24. With
reference to the case entitled “Enríquez Milagros s/ Legal
Guardianship”, the State claims that on August 1, 2000, the married
couple who had been awarded provisional guardianship of Milgros appeared
before the judge of first instance in the civil and commercial court of
the city of Victoria to request the legal guardianship of Milagros. On
October 18, 2000, Leonardo Aníbal Javier Fornerón appealed to the same
court to prevent the granting of custody and request the return of the
child to him, which he repeated on February 14, 2001, having obtained
the results of the DNA test, and again on May 7, 2001. The State claims
that on May 9, 2001, the expert psychologist presented her report and
was of the opinion that it would be psychologically damaging for the
child to be moved from the couple whom she recognizes and with whom she
has built up emotional ties, to another family that she does not know.
The State claims that both the Ombudsman for Children and the Poor and
the jurisdictional legal officer agreed with the opinion of the expert
psychologist that Milagros should remain in the guardianship of the
couple.

25. On May
17, 2001, the judge resolved to grant guardianship to the said couple.
Since Mr. Fornerón appealed against this, the second chamber of Paraná
on April 23, 2002, ordered that a socio-environmental study be carried
out on Leonardo Aníbal Javier Fornerón, requested any background
information that might be held by the Office of the Ombudsman (Defensoría
Oficial), and asked for interviews to be held with the parents and
guardians of the child by a technical psychiatric and psychological
team, and by members of the court, all of which, the State alleges, was
carried out.

26. The State
says that in the interview carried out with the guardians of Milagros,
the professionals in charge had noted that “both are professionals, of a
good social and economic standing, with a sound family situation that
would favor healthy emotional ties and a good emotional environment
which would obviously contribute positively to the child’s development.”
The team also observed that if it was decided that Milagros should be
handed to her biological father “this could cause emotional instability
in the child, upset her character, and cause intellectual impairment, in
addition to the anguish caused by separating the child from those she
has come to identify as parents.” In addition, the biological father is
unmarried and this would mean the child would lose a mother.

27. The State
states that although on June 10, 2003, the First Court of the Second
Chamber in Paraná resolved to revoke the judgment of the court of first
instance, the guardians and the Ombudsman for Children and the Poor both
lodged appeals which were accepted on November 20, 2003, and the
judgment of the court of first instance was upheld. On April 2, 2004 the
civil court of the High Court of Justice for the Province of Entre Ríos
resolved to reject the extraordinary federal appeal lodged by Mr.
Fornerón. The State emphasizes that the measure used by the petitioner
was rejected by the High Court on the grounds that it did not comply
with the common, correct, and formal requirements necessary within the
framework of the remedy described in Article 14 of Law 48; specifically,
that the petition was not self sufficient and did not effectively
introduce the federal question in time or form. Furthermore, the State
indicates that independently of this, the jurisdictional authority
resolved that the remedy would not be lawful because the decision that
was being questioned lacked institutional importance and does not lead
to an unreasonable or disproportionate solution. The State also points
out that it is not stated in the proceedings that Mr. Fornerón ever
tried to appeal against the High Court judgment by applying directly to
the country’s Supreme Court of Justice.

28. With
regard to the case entitled “Fornerón Leonardo Aníbal Javier. Visiting
Rights,” the State claims that Mr. Fornerón lodged a petition with the
Civil and Labor court of Rosario de Tala on November 15, 2001, setting
in motion a case for visiting rights, and for reasons of competence this
was referred to the Civil and Commercial Court of Victoria on April 19,
2002. By November 25, 2003, Mr. Fornerón had requested a date for a
hearing and on April 7, 2004, the Victoria judge declared the court
competent. One year later, on April 8, 2005, Leonardo Aníbal Javier
Fornerón requested a hearing in order to establish a regime for
visiting, which was held on April 29, 2005, at which it was agreed that
an expert psychologist should interview the child in order to prepare
her for a meeting with her biological father. On June 14, 2005, the
judge agreed to bear in mind the proposal from Leonardo Aníbal Javier
Fornerón with regard to a possible calendar of visits, and ordered it to
be transmitted to the guardians in order for them to comment thereon.

29. With
regard to the case entitled “Fornerón Milagros s/Full Adoption,” the
state points out that on June 6, 2004, the guardians brought proceedings
applying for full adoption and the judge therefore, having called for
the relevant documents from the Ombudsman for Children and the Poor and
from the investigating officer, decided to summon the parents of
Milagros to a hearing. On October 28, 2004, Diana Elizabeth Enríquez
appeared, and indicated her agreement to the full adoption of her
daughter Milagros, and on March 18, 2005, Mr. Fornerón indicated his
opposition to the adoption. On April 27, 2005, the Ombudsman for
Children and the Poor recommended that the court should opt for simple
adoption of the minor by the guardian couple; and on June 2, 2005, the
investigating officer was of the opinion that the aforementioned couple
possessed suitable moral and material conditions for a viable adoption
and therefore recommended that the child be given to them in simple
adoption.

30. The State
claims that an examination of the judicial acts carried out in the
domestic arena shows how the situation described by the petitioners has
been reviewed by all the different agencies concerned, in the civil as
well as in the criminal jurisdictions. Although it is true that Leonardo
Aníbal Javier Fornerón has never stopped petitioning the legal
authorities for the restitution of his daughter Milagros, the State
maintains that there have been periods of inactivity in his legal
proceedings which cannot be attributed to the local jurisdiction.
Consequently, the State considers that Leonardo Aníbal Javier Fornerón
had full access to all the remedies in the domestic jurisdiction and
failed to exhaust them to the extent defined in Article 46 of the
American Convention.

IV ANALYSIS

31. The
petitioners are empowered to lodge a petition with the Commission by
Article 44 of the American Convention. The petition names as alleged
victims certain individuals whose rights under the American Convention
the State has agreed to respect and protect. The Commission notes that
Argentina has been a State party to the Convention since September 5,
1984, when it deposited its instrument of ratification. Therefore, the
Commission has competence ratione personae to examine the
petition.

32. The
Commission has competence ratione loci to examine the petition
because the petition alleges violations of rights protected under the
American Convention which took place within the territory of a State
party to the Convention. The IACHR has competence ratione temporis
because the obligation to respect and protect the rights enshrined in
the American Convention was already in force for the State at the date
on which the violations of rights alleged in the petition took place.
Finally, the Commission has competence ratione materiae because
the petition alleges violations of human rights enshrined in the
American Convention.

B. Other requirements for
admissibility

1.
Exhaustion of remedies under domestic law

33. Article
46.1.a of the American Convention states that for a petition lodged
before the Commission to be admissible according to Article 44 of the
Convention, it is necessary that all remedies under domestic law have
been pursued and exhausted in accordance with generally recognized
principles of international law. The purpose of this requirement is to
ensure that the State in question has the possibility to resolve
disputes within its own legal jurisdiction.

34. The
requirement of prior exhaustion is applicable when domestic legislation
does in fact provide remedies that are adequate and effective to remedy
the alleged violation. In this sense, Article 46.2 specifies that the
requirement is not applicable when domestic law does not afford due
process of law for the protection of the right in question; or if the
alleged victim has been denied access to the remedies under domestic
law; or if there has been unwarranted delay in rendering a final
judgment under the aforementioned remedies. As stated in Article 31 of
the Rules of Procedure of the Commission, when a petitioner alleges one
of these exceptions it shall be up to the State concerned to demonstrate
that the remedies under domestic law have not been previously exhausted,
unless that is clearly evident from the record.

35. In the
instant case, with regard to the proceedings entitled “Fornerón Milagros
s/Full Adoption,” the Commission observes that Leonardo Javier Aníbal
Fornerón was not a party to the above proceedings but was merely called
to appear, and did appear, in order to oppose the adoption of Milagros
requested by the guardian couple. Therefore the Commission observes that
there was no obligation on Mr. Fornerón to exhaust any remedies in
relation to the above-mentioned proceedings.

36. Regarding
the argument made by the State to the effect that in the proceedings
entitled “Investigating Officer requests prior measures. Possible crime
of suppression of legal status” an extraordinary federal appeal was
neither brought nor exhausted, the petitioners point out that Leonardo
Aníbal Javier Fornerón, by appealing, exhausted all the ordinary
remedies available under domestic law that could have been effective.
The Commission observes, in this respect, that the crime alleged was
liable to prosecution by the State. It was incumbent upon the State to
carry out the proper investigation, an obligation that was not Mr.
Fornerón’s responsibility. Furthermore, the Commission observes that
even if an extraordinary federal remedy had been exhausted, the results
would not have been able to remedy the situation denounced in the
present petition.

37. In order
to determine the degree of compliance of this requirement for
admissibility, the remedies concerning legal guardianship and visiting
rights are of paramount importance. The State claims that in the
proceedings entitled “Enríquez Milagros s/Legal Guardianship,” there is
no evidence that Leonardo Aníbal Javier Fornerón attempted to appeal
against the finding of the Civil Court of the High Court of Justice in
the Province of Entre Ríos, by appealing directly to the Argentinean
Supreme Court of Justice. In this regard, the petitioners state that
because proceedings in the ordinary remedies took almost four years, for
a matter where time is of the essence, Mr. Fornerón feared that there
would be an even greater delay if he appealed to the Supreme Court, in
addition to which it would not help to remedy the delay that had already
taken place.

38. Regarding
the proceedings entitled “Fornerón Leonardo Aníbal Javier. Visiting
Rights,” the State claims that Leonardo Aníbal Javier Fornerón did not
repeatedly request the meetings that should have taken place. The
petitioners, for their part, claim that delays in the proceedings caused
by questions of jurisdictional competence, prevented any familiarity
developing between Mr. Fornerón and his daughter Milagros.

39. Regarding
these two remedies concerning legal guardianship and visiting rights,
the Commission observes that the first lasted from October 2000 until
April 2004, and the second was opened in November 2001, and according to
the records has not yet been resolved in law. With regard to the
proceedings to do with legal guardianship, it is evident that two years
passed between the decision of first instance and the reversal of second
instance. Although the State has shown that Mr. Fornerón had opportune
access to the remedies available under domestic law, it has offered no
information to either explain or justify the duration of these two
proceedings.

40. The IACHR
observes that approximately two years and a half elapsed between the
date on which Mr. Fornerón brought his request for visiting rights on
November 15, 2001, and April 7, 2004, the date on which the Victoria
judge declared himself competent, a delay that cannot in any way be
attributed to Mr. Fornerón. Moreover, the IACHR notes that the State
alleges merely that Mr. Fornerón did not repeatedly request the
familiarization meetings with Milagros; however, it fails to allege that
any other remedy should have been exhausted in order to resolve the
issue. In accordance with the burden of proof applicable in the case,
any State that alleges the non-exhaustion of remedies available under
domestic law must indicate the remedies that were available to be
exhausted and must provide proof of their effectiveness.[3]
In the present case, the State did not satisfy the burden of proof
incumbent on it.

41. To assess
any delay in resolving remedies available under domestic law, the
purpose of the legal action must also be taken into account. In this
regard, the Commission must take into account that the actions
undertaken by Leonardo Aníbal Javier Fornerón were intended to enable
him to establish and maintain an emotional and caring relationship with
his daughter Milagros. The Commission must also take into account that
the petitioners consider that the length of time taken by the
proceedings had a particularly deleterious effect on the rights of
Leonardo Aníbal Javier Fornerón and of his daughter Milagros because as
time passed, the child built up stronger ties with her guardians and
this factor was then used to maintain the adoption and to reject the
claims of the biological father. The Commission therefore notes that the
judicial proceedings concerning guardianship and custody of a boy or
girl should be handled with dispatch because of the importance of the
interests involved.[4]

42. In the
light of the foregoing analysis, the Commission concludes that Leonardo
Aníbal Javier Fornerón invoked the ordinary remedies provided by the
legal system of the State and therefore that the State was fully aware
of the claims that gave rise to the legal petition. Taking into account
the length of the ordinary remedies and allowing for the fact that the
remedy invoked as necessary by the State is subject to discretionality
as to how it is exercised and how long it lasts, it would not be
reasonable to demand that the petitioner exhausts that extraordinary
remedy as a condition of admissibility. As stated by the Inter-American
Court, “the rule of prior exhaustion must never lead to a halt or delay
that would render international action in support of the defenseless
victim ineffective…”[5]

43.
Therefore, without prejudice to anything that may be disposed regarding
the merits of the case in the future by the Commission, the Commission
concludes that there was an unwarranted delay in the proceedings of the
remedies concerning legal guardianship and visiting rights and this
excuses the petitioner from the obligation to invoke additional
exceptional remedies. It should be noted that although the application
of this exception is closely linked with issues relating to appropriate
access to protection measures and judicial guarantees, the former is
decided in line with the admissibility criteria of the system which
differ from those that are applicable during the merits stage. The
causes that prevented the opportune exhaustion of remedies available
under domestic law, as well as any possible consequences, will be
examined in the extent in which they are relevant when the Commission
examines the merits of the case.

2.
Deadline for presentation of petitions

44. In
accordance with Article 46.1 of the Convention, for a petition to be
admissible it must be lodged before the stipulated deadline, that is,
within six months from the date on which the party alleging violation of
his rights was notified of the final judgment. The six months rule
ensures legal certainty and stability once a judgment has been reached.

45. Article
32 of the Rules of Procedure of the Commission defines the principle
described above and indicates that the rule is not applicable “in those
cases in which the exceptions to the requirement of prior exhaustion of
domestic remedies are applicable.” This Article states that in these
cases, the petition shall be presented “within a reasonable period of
time, as determined by the Commission. For this purpose, the Commission
shall consider the date on which the alleged violation of rights
occurred and the circumstances of each case.”

46. In the
present case, we should not forget that Leonardo Aníbal Javier Fornerón
lodged his petition on October 14, 2004 having been notified on April
14, 2004 of the judgment which rejected the extraordinary federal
appeal, in the case entitled “Enríquez Milagros s/Judicial
guardianship.” It should also be taken into account that at the time the
petition was lodged, judgment was still pending in the proceedings
regarding visiting rights brought on November 15, 2001. The Commission
has concluded that due to the prolonged duration of the ordinary
proceedings it is appropriate to exempt this petition from the
requirement of prior exhaustion of additional extraordinary remedies.
Therefore, the Commission considers that the petition was lodged within
a reasonable period and that the requirements of Article 46.1.b have
been observed.

3.
Duplication of procedures and res judicata

47. Article
46.1.c states that the admission of a petition shall be subject to the
requirement that the subject “is not pending in another international
proceeding for settlement” and Article 47.d of the Convention
establishes that the Commission shall consider inadmissible any petition
“that is substantially the same as one previously studied by the
Commission or by another international organization.” In this case, the
parties have not alleged any of the circumstances that would give rise
to inadmissibility, and nor do they occur in the proceedings.

4.
Description of the alleged facts

48. Article
47.b of the American Convention considers inadmissible any petition that
does not state facts that tend to establish a violation of the rights
guaranteed by the Convention.

49. It is
evident that the State questions the admissibility of this petition only
on the grounds of the non-exhaustion of remedies available under
domestic law, an issue that was examined by the Commission in the
relevant section. The State did not present any specific allegations
concerning Article 47.b of the American Convention.

50. In the
present case, it is not for the Commission at this stage of the
proceedings to decide whether or not the alleged violations of the
American Convention actually took place. The IACHR has carried out a
prima facie evaluation and decided that the petition describes
complaints that, were they to be proved, could be described as possible
violations of the rights protected by the Convention. In this regard,
the Commission is competent to examine the situation that is the subject
of this complaint in the light of Article 17 of the American Convention
concerning the obligations of the State to protect the rights of the
family. Furthermore, Milagros Fornerón was entitled to special measures
of protection of minors. In this regard, the Commission will examine the
facts alleged in relation to the duties of States to prevent and protect
in accordance with Article 19 of the Convention.[6]

51. On the
basis of the information and arguments lodged concerning the excessive
time that elapsed during the proceedings for judicial guardianship and
visiting rights, the Commission observes that were these to be proved,
they could be described as violations of Article 25 of the Convention
concerning the right to prompt recourse to judicial protection as well
as of the judicial guarantees described in Article 8 of the American
Convention, because Leonardo Aníbal Javier Fornerón had the right to be
heard in order to determine his rights within a reasonable period.

52.
Furthermore, in its examination of the merits, the Commission will
decide whether the findings of the proceedings for guardianship and
adoption were in any way discriminatory, under the terms of Article 24
of the Convention, to the detriment of Mr. Fornerón.

53.
Consequently, the Commission concludes in this case that the petitioners
have lodged complaints that if compatible with other requirements and if
proved correct, could suggest grounds for proving the violation of
rights protected by the American Convention; specifically those rights
enshrined in Articles 8 (Right to a Fair Trial), 17 (Rights of the
Family), 19 (Rights of the Child), 24 (Right to Equal Protection), 25
(Right to Judicial Protection), and 1.1 (Obligation of the State to
Respect Rights).

V
CONCLUSIONS

54. The
Commission concludes that it has competence to examine the case and that
the petition is admissible in accordance with Articles 46 and 47 of the
American Convention.

55. Based on
the foregoing considerations of fact and law, and without prejudging the
merits of the case,

THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

1. To
declare this case admissible in relation to alleged violations of the
rights protected in Articles 1.1, 4, 8, and 25 of the American
Convention.

2. To give
notice of this decision to the parties.

3. To
continue the analysis of the merits of the case.

4. To
publish this decision and include it in its Annual Report to the General
Assembly of the OAS.

Done and signed
in the city of Washington, D.C., on the 26th day of the month of
October, 2006. (Signed): Evelio Fernández Arévalos,
President; Paulo Sérgio Pinheiro,
First Vice-President; Florentín Meléndez, Second Vice-President;
Freddy Gutiérrez and Paolo G. Carozza,
Commissioners.

[1]
Commission Member Victor E. Abramovich, who is Argentinean, did not
participate in the deliberations or decision of the present case, in
accordance with the provisions of Article 17.2.a of the Rules of
Procedure of the Commission.

[2]Art. 138. - A prison sentence of between one and four years
is applicable for any act whatsoever that throws doubt on, alters,
or suppresses the legal status of another person.

[6]
See, inter alia, The European Court of Human Rights,
Keegan vs. Ireland, May 26, 1994, paragraph 50, regarding the
scope of this protection with regard to the relationship between
parents and children.